Terry Edmund Massey v. The State of Texas--Appeal from 2nd District Court of Cherokee County

NOS. 12-02-00213-CR
12-02-00214-CR
12-02-00215-CR
12-02-00216-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

TERRY EDMUND MASSEY,

 
APPEAL FROM THE SECOND

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
CHEROKEE COUNTY, TEXASMEMORANDUM OPINION

Terry Edmund Massey ("Appellant") appeals his sentence following the trial court's revocation of his probation. Appellant raises one issue on appeal. We affirm.

 

Background

Appellant was charged in separate causes with three separate offenses of burglary of a habitation and one count of assault on a peace officer. Appellant pleaded guilty to each of the charges. In each cause, the trial court deferred an adjudication of guilt and placed Appellant on probation. (1) Subsequently, the State of Texas (the "State") moved to revoke Appellant's probation in each cause based on allegations that Appellant had violated certain terms of each respective probation order. On July 2, 2002, the trial court revoked each of Appellant's probations, adjudicated Appellant guilty in each cause and sentenced Appellant to separate terms of imprisonment therefor. Appellant's sentences were each ordered to run consecutively with one another. The sum of Appellant's sentences is sixty years.

 

Factual Sufficiency of Sentences Imposed

In his sole issue, Appellant argues that the evidence was factually insufficient to support the sentences imposed upon him by the trial court. We initially note that the trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable. See, e.g., Connolly v. State, 983 S.W.2d 738, 740-41 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992);Wright v. State, 592 S.W.2d 604, 606 (Tex. Crim. App. 1980); Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp. 2003). However, since article 42.12, section 5(b) further provides that "[a]fter an adjudication of guilt, all proceedings, including assessment of punishment . . . and defendant's appeal continue as if the adjudication of guilt had not been deferred[,]" our consideration of Appellant's issue, inasmuch as it relates to the sentences imposed, is appropriate. Tex. Code. Crim. Proc. Ann. art. 42.12 5(b).

Appellant challenges his sentences solely on the basis of factual sufficiency and makes no argument that the sentences were a form of cruel and unusual punishment in violation of his Constitutional rights. In considering factual sufficiency, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence in the record related to Appellant's sufficiency challenge, not just the evidence which supports the verdict. We review the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute, and compare it to the evidence which tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We are authorized to disagree with the jury's determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133. However, our review must be appropriately deferential so as to avoid substituting our own judgment for that of the fact finder. Our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See VanZandt v. State, 932 S.W.2d 88, 96 (Tex. App.-El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A verdict will be set aside "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State, No. 73692, 2002 WL 31116634, at * 5 (Tex. Crim. App. Sept. 25, 2002).

The legislature is vested with the power to define crimes and prescribe penalties. See Davis v. State, 905 S.W.2d 655, 664 (Tex. App.-Texarkana 1995, pet. ref'd.); see also Simmons v. State,944 S.W.2d 11, 15 (Tex. App.-Tyler 1996, pet. ref'd). Courts have repeatedly held that punishment which falls within the limits prescribed by a valid statute is not excessive. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. In the instant case, our review of the record indicates that each of Appellant's sentences fell well within the statutory range set forth by the legislature for the respective offense to which Appellant pleaded guilty. Moreover, Appellant concedes that the trial court had the authority to order that his sentences run consecutively. Having reviewed the record in its entirety, we have not encountered any evidence that causes us to conclude that the evidence supporting the sentences imposed is obviously weak, or that the contrary evidence, if any, so overwhelmingly outweighs the supporting evidence as to render the sentences imposed on Appellant clearly wrong and manifestly unjust. See Ortiz, 2002 WL 31116634 at * 5. Therefore, we hold that the evidence was factually sufficient to support the sentences imposed by the trial court following the revocation of Appellant's respective probations. Appellant's sole issue is overruled.

Accordingly, the sentences imposed by the trial court are affirmed.

SAM GRIFFITH

Justice

Opinion delivered January 8, 2003.

Panel consisted of Worthen, C.J., and Griffith, J.

(DO NOT PUBLISH)

1. Appellant was given a separate term of probation for each of the offenses set forth herein. The term of probation ranged from seven to ten years for each offense.